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[2015] ZAGPPHC 551
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Mavimbela v S (A733/13) [2015] ZAGPPHC 551 (7 August 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NUMBER: A733/13
DATE: 07 AUGUST 2015
In the matter between:
AFRICA
MAVIMBELA
…................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
MALULEKE AJ
[1] The appellant was convicted on 2
(two) counts of robbery with aggravating circumstances and 1 (one)
Count of possession of stolen
property. With regards to the Count of
possession of stolen property, the appellant received a sentence of 4
(four) years and in
respect of the robberies, the prescribed minimum
sentence of 15 (fifteen) years imprisonment was imposed in respect of
each count
of robbery. The court ordered that the sentence of 4 years
and 15 years in respect of count 3 and 2 run concurrently with the
sentence
of 15 years in count 1. He was also declared unfit to
possess a firearm.
[2] In these proceedings the appellant
appeals both conviction and sentence with leave of the trial court.
[3] At the heart of this appeal is the
issue of identity, in that the appellant denies having committed the
offences for which he
was convicted and sentenced.
[4] The facts of this matter are
briefly set out below as follows:
4.1 On the 24th of December 2009, the
complainants mentioned in the charge sheets in respect count 1 and
count 2 where robbed of
their property at their business premises in
Schweizer-Reneke. These complainants (Mr Kathrada and his three
sons) were accosted
by certain male persons who robbed them of their
properties and other items mentioned in the charge sheet. They took
the key of
a Toyota Yaris vehicle that belonged to the complainants
during the robbery and drove off with it. That Toyota Yaris was later
found abandoned it appears that they got away in another motor
vehicle that was later found overturned in the bushes along the
Langlaagte Road. This getaway car is the car in count 3 of the
charge sheet namely a Volkswagen Polo.
4.2 When the police arrived at the car
which had overturned there were no occupants but certain items which
were robbed from the
complainants where found in this car. Accused
number 1 who is not before us was arrested some 7km away from the
scene by a certain
Mr Andries Barnard, a security officer, patrolling
in the farms within the area and handed him to the police.
4.3 On 30 December 2009 Police needed
to confirm the residential address of accused 1 and for that purpose
drove with him to Johannesburg
.On their way to Johannesburg and
shortly after leaving Schweizer-Reneke, accused 1 saw a Citi Golf
approaching which he identified
to the police officers as being his
family who were coming to visit him. The police turned around and
followed the car in question
and somewhere along the gravel road near
the bushes they found the appellant, standing among the trees near
where a witness had
earlier discovered the firearms as well as some
cash, which were later handed to the police. When asked, the
appellant explained
his presences there by stating that he was
looking for some herbs. As the police did not believe his story and
were suspicious
of him, they arrested him. His arrest was on the
30th of December 2009, some six days after the commission of the
robberies.
4.4 The appellant was later subjected
to an identification parade where he was positively identified by one
of the complainants
to the robberies in question. During trial he
pleaded not guilty to all 5 counts the court rejected his evidence
and convicted
him on counts 1, 2 and 3. He was sentenced to an
effective 15 years imprisonment. In convicting the appellant the
trial court found
that he was linked to the robberies by the evidence
of the complainants. The court was not satisfied with his
explanation that
he wanted to relieve himself in the bushes in
Schweizer-Reneke. It is clear that the appellant and accused 3 were
coming to visit
accused 1, who had been arrested and was in custody
as well as to check out the stashed cash and other stolen properties
given
the proximity of where the appellant was arrested to the place
where these items were retrieved by the police. One of the sons of
Mr
Kathrada identified the appellant positively during the
identification parade.
[5] The fact that the trial court
rejected the appellant’s testimony in regard to his explanation
as to why he was in Schweizer
-Reneke does not mean that he was
responsible for the offences for which he was charged. The state
still needed to prove his guilt
beyond reasonable doubt in respect of
all these counts.
[6] Based on the testimony of the state
witnesses and other evidence in support thereof, the learned
Magistrate was satisfied that
the Identity parade was conducted
properly. He further found that the complainants in question had
ample opportunity to see the
attackers and their subsequent
identification at the parade confirmed their correct observation of
their assailants. In doing
so he excluded the evidence of Mr
Kathrada Senior, which he referred to as a dock identification. The
learned magistrate concluded
that the state had proven its case
beyond reasonable doubt both in regard to identity of the appellant
as well as the commission
of these crimes.
[7] As stated earlier the appellant
denies that he is the person who committed the offenses and testified
that he was at home with
his wife and children on the 24th of
December 2009. He denied being in Schweizer-Reneke on the day in
question.
[8] Counsel for the appellant submitted
in his Heads that the conviction of the appellant is based solely on
the evidence of the
Identification parade. He later seemed to abandon
this argument. He argued that some questions on the identification
parade form
were not filled or answered and that the parade itself
did not comply with the requirements or rules of identity parades and
that
the trial court erred in relying on that evidence to convict the
appellant. He argued further that the state’s evidence
regarding
identity cannot be relied upon. He said the complainants
were attacked by more than two perpetrators, it was a moving and
scary
scene and firearms were brandished. He said that the
complainants were not able to give descriptions of the suspects or
any peculiar
features and relying on S v Mthethwa
1972 (3) SA 766
(AD), submitted that the trial court erred in ruling that the
appellant was properly identified.
[9] He also argued correctly so that
the guilt of the accused must be proven beyond reasonable doubt,
weighing up all elements which
point towards the guilt of the
accused against all those that are indicative of the accussed’s
innocence, taking proper
account of inherent strengths, weaknesses,
probabilities and improbabilities on both sides and, having done so,
to decide whether
the balance weighs so heavily in favour of the
state so as to exclude any doubt as to the accused’s guilt as
it was held
in S v Chabalala
2003 SACR 134
(SCA). It is common cause
that the appellant testified in his own defence and called no
witnesses. Suffice it to say his defence
was a bare denial of all
allegations made against him by the state. It is trite law that the
appellant does not have to prove his
innocence. His duty is to give
the court a version that is reasonably possibly true and the court
does not have to believe his
version to be truthful. It was submitted
for the appellant that his version can only be rejected on the basis
of inherent improbabilities,
not because it was merely improbable but
because it was so improbable that it could not have been reasonably
possibly true. On
this score the appellant submitted that the trial
court erred in ruling that his version is not reasonably possibly
true. More
over the appellant submitted that the state failed to
prove its case against him beyond reasonable doubt and that his
conviction
ought to be set aside.
[10] On the other hand Counsel for the
Respondent, argued that 3 witnesses who testified on behalf of the
state said that they
were able to recognise the appellant as one of
the robbers. Firstly, Farid Kathrada testified that he was able to
identify the
appellant because the appellant was the person who
confronted him and pointed a firearm at him. The appellant was
apparently keeping
guard of this witness as he was ordering him
around and the complainant had sufficient time to look at him. The
Complainant observed
the appellant for between 3 to 5 minutes. Two
other witnesses also testified that the appellant was indeed one of
the robbers who
pointed their father with a firearm. Harum Kathrada
testified that he observed the appellant for 3 to 4 minutes and later
positively
identified him at the Identity parade.
[11] Counsel for the respondent further
argued that there is evidence which confirms that the parade was
conducted properly, in
accordance with the procedure as recorded in
Exhibit J and that it is not disputed that only the appellant was
identified at the
parade. The respondent requested this court to
reject the appellant’s version as false by all accounts and
submitted that
the identity of the appellant was proven beyond
reasonable doubt. The respondent also referred this court to a number
of contradictions
and inconsistencies in the appellant’s
version as regards his presence in Schweizer-Reneke on 30 December
2009, namely,
whether he was there to relieve himself or to look for
herbs. In the final analysis it was submitted for the respondent that
the
appellant was correctly convicted in respect of all 3 counts.
[12] Having received and considered the
submissions of both Parties I can find nothing wrong with the learned
Magistrate’s
findings. These robberies took place in broad day
light and the complainants in my view did have ample opportunity to
observe their
robbers and subsequently positively identified the
appellant at an Identification parade. I therefore reject the
appellant’s
arguments and submissions that the trial court
relied solely/mainly on the Identification parade in convicting him.
Accordingly,
the appeal against conviction on Count 1 and Count 2
falls to be dismissed.
[13] On the conviction in respect of
Count 3, the Court a quo made the following finding:
13.1 Evidence before the court was that
this car was stolen some days before the commission of the offences
that the appellant and
his co-accused faced. There was no evidence
that these accused persons stole this motor vehicle. However the
court was satisfied
that the car was found in their possession. The
learned Magistrate found that the state had proved its case that the
persons who
committed the robberies in respect of Count 1 and 2 are
the persons who used this motor vehicle in count 3 which was later
found
overturned.
[14] Counsel for the appellant
submitted that there is no evidence linking the appellant to count 3
that is possession of stolen
property. There is no evidence to the
effect that the appellant was in possession of the said motor
vehicle, Volkswagen Polo. He
submitted that the trial court erred in
convicting the appellant of this offence and repeated the arguments
that the respondent
failed to discharge its duty in respect of its
case on the guilt of the appellant and begged this court to equally
set the appellant’s
conviction in respect of this chount aside.
[15] Counsel for the respondent argued
that the perpetrators of the robbery used the polo as a getaway car
and were followed by
the police. They abandoned the polo after it was
involved in an accident. It is clear that they all had a common
purpose to possess
the car and use it during the robbery. He
submitted that the appellant was correctly convicted in respect of
all 3 counts.
[16] Having heard both Parties in
respect of this count I also find nothing wrong with the findings of
the learned Magistrate. In
the circumstances, the appeal against
conviction on possession of stolen property charge also falls to be
dismissed.
SENTENCE
[17] Counsel for the appellant
submitted that the trial court erred in sentencing the appellant to
an effective 15 years imprisonment.
He proceeded to say the court a
quo erred further in over-emphasizing the seriousness of the offence
which the appellant has committed
and the interest of the society
whilst the personal circumstances of the appellant were under
emphasised. It was also submitted
that in imposing such a lengthy
period of imprisonment the sentencing court erred as the sentence is
shockingly harsh and induces
a sense of shock. He also argued that
the finding that the cumulative effect of the sentences does not
constitute substantial and
compelling circumstances was an error on
the part of the court a quo namely the fact that:
• The appellant spent over two
years in custody awaiting trial;
• The complainants were not
injured during the robbery;
• Most of the complainants
‘properties were recovered;
• The appellant has one minor
child;
• The appellant was self-employed
as vendor and was supporting his family;
• The appellant is HIV positive;
• The appellant suffering from
piles; and
• The prospects of rehabilitation.
[18] In this regard it was submitted
for the appellant that the 15 years imprisonment is strikingly
disproportionate to the circumstances
of the offence and ought to be
set aside. He also argued that the shortened sentence be antedate to
the 20th June 2012.
[19] Counsel for the respondent pointed
us to the record and charge sheet, the robberies in Count 1 and Count
2 are read with
section 51(2)
of the
Criminal Law Amendment Act 105
of 1997
. He stated that robbery is a serious and violent offence
which often result in injury and death. The appellant and his
companions
were so brazen to commit robbery in broad day light
endangering the lives of the complainants and their customers. They
also brazenly
hijacked people’s cars in an endeavour to get
away. There is an outcry from the community for perpetrators of these
violent
acts to be sentenced with deterrent sentences. He said the
court a quo ordered the sentences in Counts 2 and 3 to run
concurrently
with the sentence in count 1. He argued further that
there are many aggravating factors than there are mitigating ones and
submitted
that an effective sentence of 15 years imprisonment is not
disturbingly disproportionate.
[20] As correctly submitted by Counsel
for the appellant sentencing is pre-eminently a matter for the
discretion of the trial court
and the appeal court should be careful
not to erode such discretion unless satisfied that the discretion has
not been ‘judicially
and properly’ exercised. The enquiry
here is whether the sentence is vitiated by irregularity or
misdirection or is disturbingly
inappropriate (see S v Rabie
1975 (4)
SA 855
(A)).
[21] In S v Groenemeyer
1974 (2) SACR
542
it was held at page 544 that:
“The courts are not here to take
revenge and there can be no justice without mercy”.
However if sentences are too lenient
the public and members of society or families of the many
complainants who are affected by
crime may be inclined to take the
law into their hands and this will certainly undermine the proper
administration of justice.
[22] I recognise the seriousness and
extent of the offence committed by the appellant. The society expects
the court to make sure
that persons such as the appellant must not
roam free within the streets of our communities. They must be taught
a lesson to deter
others from committing these crimes. Parliament
also deems the crime of robbery, among others, as a very serious
offence and in
this regard promulgated Act 105 of 1997 prescribing
minimum sentences in this regard of 15 years imprisonment. Having
said this
and in light of S v Mako
2005 (2) SACR 223(E)
at page 233
where it was held:
“Furthermore the individualised
nature of sentencing must not be lost sight of and it was irregular
to sacrifice the accused
on the altar of deterrence, even where the
crime was very grievous in its effects or possible effects it was
not proper to disregard
the history and circumstances of the accused,
a subjective aspect of the crime”.
[23] The fact that the trial court
regarded the appellant as a first time offender and that he had spent
over 2 years in custody
awaiting trial, do in my view constitute
substantial and compelling circumstances justifying a deviation from
the prescribed minimum
sentence. I therefore find that the learned
Magistrate committed a misdirection which justify this court’s
decision to interfere
with the sentence.
[24] Having regard to these factors and
circumstances I make the following order:
IT IS ORDERED THAT
1. The appeal against conviction in
respect of count 1, 2 and 3 is dismissed.
2.The appeal against sentence in
respect of count 1 and 2 is upheld.
3. The sentence is set aside and
substituted with the following:
(a) In respect of Count 1, the
appellant is sentenced to 13 years imprisonment;
(b) In respect of Count 2, the
appellant is sentenced to 13 years imprisonment; and
(c) Sentences in respect of count 1 and
2 will run concurrently antedated to 20 June 2012.
MALULEKE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree
MAKUME
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
It is so ordered.
Date of hearing: 27 July 2015
Representation for Appellant:
Counsel : Mr. M B kgagara
Instructed by : Pretoria Justice
Centre
Representation for the Respondent:
Counsel : Adv. M M Mashuga
Instructed by : The State